Citation Nr: 0211191
Decision Date: 09/03/02 Archive Date: 09/09/02
DOCKET NO. 94-19 846 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office & Insurance
Center in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to a rating in excess of 40 percent for arthritis
of the low back with sacralization of L5-S1, degenerative
disc disease (DDD), and intervertebral disc syndrome (IDS).
REPRESENTATION
Appellant represented by: Richard F. Curley, Attorney at
Law
WITNESS AT HEARINGS ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
T. Hal Smith, Counsel
INTRODUCTION
The veteran served on active duty from June 1960 to September
1962.
The current appeal arose from a September 1993 rating
decision of the Department of Veterans Affairs (VA) Regional
Office and Insurance Center (RO&IC) in Philadelphia,
Pennsylvania.
In August 1994 the veteran provide oral testimony before a
Hearing Officer at the RO&IC, a transcript of which has been
associated with the claims file.
In May 1991 the veteran and his wife provided oral testimony
before a Hearing Officer at the RO&IC, a transcript of which
has been associated with the claims file.
In July 1999 the Board of Veterans' Appeals (Board) remanded
the claim for additional evidentiary development and
adjudicative action.
In June 2002 the RO&IC most recently affirmed the
determination previously entered.
The case has been returned to the Board for further appellate
review.
FINDING OF FACT
Arthritis of the low back with sacralization of L5-S1, DDD,
and IDS is productive of not more than severe disablement,
with no evidence of pronounced impairment or additional
functional loss due to pain or other pathology.
CONCLUSION OF LAW
The schedular criteria for an evaluation in excess of 40
percent for arthritis of the low back with sacralization of
L5-S1, DDD, and IDS have not been met. 38 U.S.C.A. §§ 1155,
5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 4.1, 4.2,
4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs)
5010-5293 (2001).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
A review of the service medical records (SMRs) reveals that
the veteran was seen in 1962 for complaints of pain in the
back, shoulder, and left hip. While X-rays of the thoracic
spine were interpreted as normal, postservice private records
and VA examination report from 1967 show that arthritis of
the back was diagnosed.
Service connection for arthritis with sacralization of L5-S1
was established upon rating decision in November 1967 and a
10 percent rating was assigned, effective from the day
following separation from service.
In July 1976, the veteran was hospitalized for back
complaints and treated with analgesics and therapy. At time
of release, he was able to resume his normal pre-hospital
activities.
In August 1976 the RO&IC assigned a temporary total rating
(TTR) based on the veteran's July 1976 hospitalization,
effective from July 6, 1976, through the end of that month.
The 10 percent rating was to resume on August 1, 1976.
In the early 1990s the veteran was seen again for low back
complaints. A VA examination was conducted in June 1993.
The lumbar spine showed moderate tenderness with marked
tenderness in the left lumbar paraspinal area. There was
also moderate lumbar paraspinal muscle spasm bilaterally.
ROM testing of the lumbar spine showed forward flexion to 30
degrees, extension to 10 degrees, lateral flexion to 10
degrees on the right and 15 degrees on the left. Rotation
was to 10 degrees in both directions. X-rays showed
degenerative osteoarthritis. The diagnosis included
traumatic arthritis of the lumbar spine.
In a September 1993 rating decision, the RO&IC increased the
10 percent disability rating to 40 percent, effective
February 18, 1993, the date the veteran had filed for an
increased rating. The veteran submitted a notice of
disagreement with this determination and this appeal ensued.
In support of his claim, the veteran submitted additional VA
treatment records. These documents reflect that he was
pertinently seen in the early 1990s for his back disability.
These records also reflect that he was hospitalized at a VA
facility from September 28, 1993, to October 21, 1993, for
chronic lower back pain. Upon admission, the veteran
reported that his back symptoms had increased. There was
radiation into the left lower extremity. He denied any
sensory loss. He was admitted to the rehabilitation bed
unit. He requested to be released when he felt that he was
at the maximum level of improvement. At time of discharge,
he was advised to limit his activities.
A TTR based on the above summarized hospital stay was granted
by the RO in February 1994. It was effective from September
28, 1993, until the end of October 1993, to be followed by
resumption of the previously assigned 40 percent disability
rating.
At a personal hearing in August 1994, the veteran testified
that he was currently undergoing physical therapy at a VA
facility. He used a cane for ambulation and could walk up to
300 feet. He could stand or sit for about 10 minutes.
He wore a back brace at all times and used a transcutaneous
electrical nerve stimulating (TENS) unit except during
therapy. He had last worked at the post office in 1992. He
had previously worked as carpenter for many years but had
stopped working due to back pain. He said that he could not
tie his shoes and occasionally needed help getting up out of
a chair or from bed. His wife stated that she helped him
with dressing.
When the veteran was examined by VA in September 1994, he was
found to have localized tenderness over the left sacral area
and bilateral lumbar paravertebral area with some muscle
tightness. There was no sciatic notch tenderness. Range of
motion (ROM) was to 30 degrees upon forward flexion and
backward extension and lateral flexion were to 10 degrees.
There was slight muscle weakness in both lower extremities.
X-rays were interpreted as showing mild bony osteopenia,
possible early degenerative osteoarthritis, and no evidence
of DDD.
Additional VA examination was conducted in March 1998. The
veteran reported continued limitation of activities due to
his back problems. ROM was noted to be 30 degrees of forward
flexion and 8 degrees of backward extension. There was 10
degrees of lateral flexion on the right and 15 degrees of
lateral flexion on the left. There was slight muscle
weakness in the right lower extremity. There was decreased
left ankle jerk upon deep tendon reflexes. X-ray showed mild
hypertrophic spurring at L3-L5 and mild degenerative
osteoarthritis. The final diagnoses included traumatic
lumbar spondylosis and history of herniated disc of the left
side, with radiculopathy on the left side and spurring,
degenerative joint disease (DJD).
At a May 1999 personal hearing, the veteran and his spouse
testified in support of his claim. He indicated that he the
severity of his back symptoms had increased and that he had
radiation of pain into the left lower extremity.
In a July 1999 remand decision, the Board determined that
additional evidentiary development was necessary, to include
obtainment of medical records and contemporaneous orthopedic
and neurological examinations.
Subsequently added to the record were treatment records to
include documents received from the Social Security
Administration (SSA). The record reflects that the SSA
granted the veteran benefits in November 1994, in part due to
his DDD of the lumbar spine.
The submitted records include more private and VA records
from the 1990s which show that the veteran was treated for
numerous conditions over the years, to include his low back.
When examined by VA in March 2000, there was tenderness over
the paraspinal muscle at L4-5 and L5-S1. Painless active ROM
was to forward flexion of 30 degrees, with backward extension
to 10 degrees. Flexion on the right was to 10 degrees and to
13 degrees on the left. Rotation was to 15 degrees. Passive
ROM was to flexion of 45 degrees with complaints of pain.
Extension was to 15 degrees with lateral flexion bilaterally
of 20 degrees. The examiner opined that DDD and IDS were
related to the service-connected back disability.
A VA peripheral nerves examination was conducted in May 2000.
The veteran reported pain that radiated into the lower
extremities as far as the ankles. Neurological examination
showed that reflexes were absent in the ankles. There was
decreased vibratory sensation in the feet. He could toe walk
and heel walk. Strength was 5/5. Active ROM was to forward
flexion of 60 degrees with backward extension to 15 degrees.
Flexion to the right was to 10 degrees and to 20 degrees on
the left. He resisted to go above active ROM due to low back
pain. The examiner noted that there was mild functional
impairment and mild incoordination due to the veteran's
guarding gait, but no apparent pain on short distance
ambulation of fatigue. On long distance ambulation above 100
feet, there was apparent mild antalgic gait on the left, but
no additional loss of ROM due to repeated use or flare-up.
The examiner noted that magnetic resonance imaging (MRI) scan
showed no evidence of disc herniation as previously reported.
There was spondylosis with five functional lumbar vertebra
and some evidence of DDD and mild canal stenosis.
Additional VA examination was conducted in April 2002. The
appellant's gait was antalgic on the left. There was some
tenderness over the mid low back with palpation over the
posterior spinous processes. Forward flexion was to 65
degrees, extension was to 20 degrees, and side bending was to
25 degrees. Motor examination of the lower extremities was 4
to 4+/5. There was negative straight leg raise. The
examiner noted that clinical exam showed no evidence of
weakened movements, fatigability, or incoordination. In
regard to additional ROM in the lumbar spine, it lacked the
last 25 degrees of forward flexion.
VA examination in May 2002 showed that on formal neurologic
examination there was no evidence of lumbar radiculopathy.
Deep tendon reflexes were 1+ at the knee, trace at the
ankles, and plantar responses were flexor. There was no
focal decrease in pin at any level, nor was there any loss of
strength.
Criteria
Disability evaluations are based upon the average impairment
of earning capacity as determined by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part
4 (2001). Separate rating codes identify the various
disabilities. 38 C.F.R. Part 4. In determining the current
level of impairment, the disability must be considered in the
context of the whole-recorded history, including service
medical records. 38 C.F.R. §§ 4.2, 4.41 (2001). An
evaluation of the level of disability present also includes
consideration of the functional impairment of the veteran's
ability to engage in ordinary activities, including
employment, and the effect of pain on the functional
abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2001);
DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995).
The determination of whether an increased evaluation is
warranted is based on review of the entire evidence of record
and the application of all pertinent regulations. See
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
Once the evidence is assembled, the Secretary is responsible
for determining whether the preponderance of the evidence is
against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990). If so, the claim is denied; if the evidence is in
support of the claim or is in equal balance, the claim is
allowed. Id. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria for that rating. Otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7 (2001).
Traumatic arthritis, confirmed by X-ray, is rated as
degenerative arthritis under DC 5010. 38 U.S.C.A. § 4.71a,
DC 5003 (2001).
Degenerative arthritis established by X-ray findings will be
rated on the basis of limitation of motion under the
appropriate DCs involved under 38 C.F.R. § 4.71a, DC 5003
(2001).
When, however, the limitation of motion of the specific joint
or joints involved is noncompensable under the DCs, a rating
of 10 percent is for application for each such major joint or
group of minor joints affected by limitation of motion, to be
combined, not added under DC 5003. Limitation of motion must
be objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion.
In the absence of limitation of motion, a 20 percent
evaluation is warranted with X-ray evidence of involvement of
two or more major joints or two or more minor joints groups
with occasional incapacitating exacerbations. A 10 percent
evaluation is warranted with X-ray evidence of involvement of
2 or more minor joint groups. The 20 percent and 10 percent
ratings based on X-ray findings, above, will not e combined
with ratings based on limitation of motion. Id.
DC 5292 provides that severe limitation of motion of the
lumbar spine warrants a 40 percent rating. Moderate
limitation warrants a 20 percent rating and slight limitation
warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5292
(2001).
DC 5293 provides for a noncompensable rating when
intervertebral disc syndrome is postoperative and cured. A
10 percent evaluation is warranted when this disorder is
mild. A 20 percent rating is for assignment for moderate
intervertebral disc syndrome, with recurring attacks. For a
40 percent rating, intervertebral disc syndrome must be
severe with recurring attacks and with intermittent relief.
A 60 percent rating is warranted when intervertebral disc
syndrome is pronounced with persistent symptoms compatible
with sciatic neuropathy with characteristic pain and
demonstrable muscle spasm, absent ankle jerk, or other
neurological findings appropriate to site of disease disc,
with little intermittent relief.
DC 5289 provides that ankylosis of the lumbar spine,
unfavorable, warrants a 50 percent evaluation. Favorable
ankylosis warrants a 40 percent evaluation.
Also applicable is DC 5295 which provides that for
lumbosacral strain with slight subjective symptoms only, a
noncompensable evaluation is warranted and with
characteristic pain on motion, a 10 percent evaluation is
warranted. A 20 percent evaluation is warranted for
lumbosacral strain with muscle spasm on extreme forward
bending, loss of lateral spine motion, unilateral, in
standing position. A 40 percent evaluation is assigned when
lumbosacral strain is severe with listing of whole spine to
opposite side, positive Goldthwaite's' sign, marked
limitation of forward bending in standing position, loss of
lateral motion with osteoarthritic changes, or narrowing or
irregularity of joint space, or some of the above with
abnormal mobility on forced motion.
Normal or complete ranges of motion associated with the
lumbar spine are flexion forward to 95 degrees, extension
backwards to 35 degrees, lateral flexion to 40 degrees, and
rotation to 35 degrees. VA Physician's Guide to Disability
Evaluation Examinations, § 2.23 on p.2-10 (Paul M. Selfon,
M.D., Editor-in-Chief).
Pyramiding, that is the evaluation of the same disability, or
the same manifestation of a disability, under different DCs,
is to be avoided when rating a veteran's service-connected
disabilities. 38 C.F.R. § 4.14 (2001).
It is possible for a veteran to have separate and distinct
manifestations from the same injury which would permit rating
under several DCs; the critical element in permitting the
assignment of several ratings under various DCs is that none
of the symptomatology for any one the conditions is
duplicative or overlapping with the symptomatology of the
other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-
62 (1994).
Ratings shall be based as far as practicable, upon the
average impairments of earning capacity with the additional
proviso that the Secretary shall from time to time readjust
this schedule of ratings in accordance with experience. To
accord justice, therefore, to the exceptional case where the
schedular evaluations are found to be inadequate, the Under
Secretary for Benefits or the Director, Compensation and
Pension Service, upon field station submission, is authorized
to approve on the basis of the criteria set forth in this
paragraph an extra-schedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability or disabilities. The governing
norm in these exceptional cases is: A finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1) (2001).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
When, after careful consideration of all of the evidence and
material of record in an appropriate balance of positive and
negative evidence regarding the merits of an issue material
to the determination of the matter, and the benefit of the
doubt doctrine in resolving each issue shall be given to the
veteran. 38 U.S.C.A. § 5107 (West Supp. 2002); 38 C.F.R.
§ 3.102 (2001); Alemany v. Brown, 9 Vet. App. 518, 519
(1996).
The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary. Where there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. § 5107
(West Supp. 2002).
Analysis
Duty to Assist
The Board initially notes that there has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. 106-475, §
7(b), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107
note (Effective and Applicability Provisions). Among other
things, this law eliminates the concept of a well-grounded
claim and supersedes the decision of the United States Court
of Appeals for Veterans Claims (CAVC) in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14
Vet. App. 174 (2000) (per curiam order), which held that VA
cannot assist in the development of a claim that is not well
grounded.
This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA, or filed before
the date of enactment and not yet final as of that date.
VCAA, Pub. L. No. 106-475, § 7(b), 114 Stat. 2096, 2099-2100
(2000). 38 U.S.C.A. § 5107 note (Effective and Applicability
Provisions); see generally Holliday v. Principi, 14 Vet.
App. 280 (2001); see also Karnas v. Derwinski, 1 Vet.
App. 308 (1991).
On August 29, 2001, the final regulations implementing the
VCAA were published in the Federal Register. The portion of
these regulations pertaining to the duty to notify and the
duty to assist are also effective as of the date of the
enactment of the VCAA, November 9, 2000. 66 Fed. Reg. 45,
620, 45, 630-45, 632 (August 29, 2001) (to be codified at
38 C.F.R. § 3.159).
Where the law and regulations change while a case is pending,
the version more favorable to the appellant applies, absent
congressional intent to the contrary. Karnas v. Derwinski, 1
Vet. App. 308, 312-313 (1991). The Board is of the opinion
that the new duty to assist law has expanded VA's duty to
assist (e.g., by providing specific and expanded provisions
pertaining to the duty to notify), and is therefore more
favorable to the veteran. Therefore, the amended duty to
assist law applies. Id.
In the case at hand, the Board is satisfied that the duty to
notify and the duty to assist have been met under the new
law.
The duty to notify has been satisfied as the veteran has been
provided with notice of what is required to substantiate his
claim. The RO&IC, through its issuance of its rating
decisions, statement of the case, supplemental statements of
the case, and associated correspondence, and more recently
dated correspondence after the Board's 1999 remand of the
case, has given the veteran notice of the information and
evidence necessary to substantiate his claim. That is, he
was provided with notice of the regulations pertaining to an
increased rating for the disability at issue, a rationale of
the denial, and he was notified of his appellate rights.
38 U.S.C.A. § 5103 (West Supp. 2001); 66 Fed. Reg. 45,620,
45,630 (August 29, 2001) (to be codified at 38 C.F.R.
§ 3.159).
In this case, a preliminary review of the record shows that
VA has made reasonable efforts to obtain evidence necessary
to substantiate the veteran's claim. The Board notes that a
variety of extensive records have been associated with the
claims folder including SMRs, postservice private and VA
treatment records, as well as multiple VA examination
reports.
The evidence of record provides a complete basis for
addressing the merits of the veteran's claim as cited above
at this time. Therefore, the duty to assist has been
satisfied in this case. 38 U.S.C.A. § 5103A (West Supp.
2002); see also 66 Fed. Reg. 45,620, 45,630 (August 29, 2001)
(to be codified at 38 C.F.R. § 3.159).
In light of the foregoing, the Board is satisfied that all
relevant facts have been adequately developed to the extent
possible; no further assistance to the appellant in
developing the facts pertinent to his claim is required to
comply with the duty to assist him as mandated by 38 U.S.C.A.
§§ 5103, 5103A (West Supp. 2002).
In this case, the Board finds that the veteran is not
prejudiced by its consideration of his claim pursuant to this
new law. As set forth above, VA has already met all
obligations to the veteran under this new law. Moreover, the
veteran has been afforded the opportunity to submit evidence
and argument on the merits of the issues on appeal, and has
done so.
In its many correspondences with the veteran the RO&IC has
informed him of the evidence he should obtain and which
evidence it would retrieve as specified. The RO&IC has in
fact augmented the evidentiary record in accordance with the
veteran's directives as well as those of the Board in its
1999 remand. See Quartuccio v. Principi, No. 02-997 (U.S.
Vet. App. June 19, 2002).
In view of the foregoing, the Board finds the veteran will
not be prejudiced by its actions and that a remand for
adjudication by the RO&IC of his claim under the new law
would only serve to further delay resolution of his claim.
See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
Having determined that the duty to assist has been satisfied,
the Board turns to an evaluation of the veteran's claim on
the merits.
Increased Evaluation
The veteran's service-connected traumatic arthritis of the
lumbar spine with sacralization of L5-S1 to include DDD and
IDS is currently evaluated as 40 percent disabling under 38
C.F.R. § 4.71a, DCs 5010-5293. DC accounts for the arthritis
present in the lumbar spine. Under the latter code, to
warrant a rating in excess of 40 percent, the veteran would
have to show pronounced IDS with persistent symptoms
compatible with sciatic neuropathy with characteristics pain
and demonstrable muscle spasm, absent ankle jerk, or other
neurological finding appropriate to site of the diseased disc
with little intermittent relief.
What was shown at the recent neurologic evaluation in 2002
was that there was no evidence of lumbar radiculopathy. Deep
tendon reflexes were 1+ at the knee, trace at the ankles, and
plantar responses were flexor. There was no focal decrease
in pin at any level, nor was there any loss of strength.
Clearly, the symptoms that would warrant an increased rating
under this code are not demonstrated. It is the Board's
determination that the veteran's current back disability is
best represented by a 40 percent rating which contemplates
IDS that is severe with recurring attacks and with
intermittent relief. 38 C.F.R. § 4.71, DC 5293.
It is noted that the veteran has previously received his 40
percent evaluation pursuant to DC 5292 regarding limitation
of motion. The record reflects that he has continuously
complained of pain on motion and with prolonged standing and
walking. Examiners have specifically noted painful motion,
but it is noted that ROM at the time the most recent
examination had improved over the findings made in 2000 and
severe limitation is no longer demonstrated. In addition to
the previously diagnosed arthritis with sacralization of L5-
S1, the veteran's service-connected disorder was
recharacterized to include DDD and IDS. Therefore, the Board
finds that the veteran is properly evaluated as 40 percent
disabled, which is the maximum evaluation allowable under DC
5292.
The Board has considered whether the veteran would be more
adequately evaluated under any other DC for his lumbar spine.
The medical evidence of record does not indicate, and the
veteran does not appear to contend, that he fractured his
lumbar spine in service. Therefore, evaluation of the lumbar
spine pursuant to DC 5285 (Vertebra, fracture of, residuals)
would be improper.
Ankylosis is defined as immobility and consolidation of a
joint due to disease, injury, or surgical procedure. See
Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) [citing
DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (27th ed. 1988) at
91]; see also Lewis v. Derwinski, 3 Vet. App. 259 (1992).
Inasmuch as the veteran does not appear to contend, and the
medical evidence does not suggest, that his lumbar spine is
ankylosed, he would not be properly evaluated under DCs 5286,
5289 (rating bony fixation or ankylosis of the lumbar spine).
Under DC 5295 (Lumbosacral strain), severe lumbosacral strain
with listing of the whole spine to the opposite side;
positive Goldthwait's sign; marked limitation of forward
bending in standing position; loss of lateral motion with
osteo-arthritic changes or narrowing or irregularity of joint
space; or some of the above with abnormal mobility on forced
motion is assigned a 40 percent evaluation. Lumbosacral
strain with muscle spasm on extreme forward bending, loss of
lateral spine motion, unilateral in standing position is
assigned 20 percent; the disorder with characteristic pain on
motion is assigned 10 percent; and, with slight subjective
symptoms only, is noncompensable.
Thus, although the veteran does suffer significant limitation
of motion on forward bending, limitation of lateral motion
with osteoarthritic changes and some abnormal mobility,
including limping with an antalgic gait, the maximum
evaluation he could receive under DC 5295 would be 40
percent.
As mentioned above, under 38 C.F.R. § 4.14, the evaluation of
the same manifestations resulting from a service-connected
disability under different diagnoses is to be avoided. In
VAOPGCPREC 36-97, the VA General Counsel concluded that DC
5293 involves limitation of range of motion.
According to that opinion, a veteran may not be rated under
DC 5293 for IDS based upon limitation of motion, and also
rated under DC 5292, because to do so would constitute
evaluation of an identical manifestation of the same
disability under two different diagnoses. Therefore, in
keeping with 38 C.F.R. § 4.7, the disability may be rated
under the DC which produces the higher rating, if that DC
better reflects the extent of the veteran's disability.
Therefore, and for the reasons discussed above, the Board
finds that the veteran is most adequately evaluated as 40
percent disabled pursuant to DC 5293, and that a higher
rating under that code is not warranted.
The Board recognizes that the CAVC, in , DeLuca, supra, held
that, where evaluation is based on limitation of motion, the
question of whether pain and functional loss are additionally
disabling must be considered. See 38 C.F.R. §§ 4.40, 4.45,
4.59 (2002).
In DeLuca, the CAVC held that 38 C.F.R. §§ 4.40 and 4.45 were
not subsumed into the DC under which the veteran's
disabilities are rated, and that the Board has to consider
the functional loss due to pain of a musculoskeletal
disability under 38 C.F.R. § 4.40, separate from any
consideration of the veteran's disability under the DCs.
DeLuca, 8 Vet. App. at 206. It is noted, here, however, that
the examiner found no clinical evidence of weakened
movements, fatigability, or incoordination upon examination
in April 2002.
The Board has also considered whether a separate disability
rating would be appropriate for neurological findings
appropriate to the site of the diseased disc under the
diagnostic codes pertinent to rating neurological disorders.
See Bierman v. Brown, 6 Vet. App. 125 (1994); Esteban, supra.
After reviewing the record, the Board finds that a separate
disability rating is not warranted, because the objective
medial evidence does not demonstrate that the veteran suffers
from a separate neurological disability distinct from his
DDD.
Examinations have shown that lumbar neuropathy is not
present, nor have any separate neurological findings or
disability not already contemplated under DC 5293 been
identified. Therefore, the Board concludes that the veteran
does not suffer from additional neurological deficiency so as
to warrant a separate disability rating under the DCs
pertinent to rating neurological disorders. See Bierman, 6
Vet. App. At 129-132.
Final Considerations
Extraschedular Evaluation
The CAVC has held that the Board is precluded by regulation
from assigning an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet.
App. 88 (1996).
The Board, however, is still obligated to seek all issues
that are reasonably raised from a liberal reading of
documents or testimony of record and to identify all
potential theories of entitlement to a benefit under the law
or regulations.
In Bagwell v. Brown, 9 Vet. App. 337 (1996), the CAVC
clarified that it did not read the regulation as precluding
the Board from affirming an RO&IC conclusion that a claim
does not meet the criteria for submission pursuant to
38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on
its own. In the veteran's case at hand, the Board notes that
the RO&IC provided and discussed the criteria for assignment
of extraschedular evaluation for the low back disability at
issue for which an increased evaluation is sought by the
veteran on appeal.
The CAVC has further held that the Board must address
referral under 38 C.F.R. § 3.321(b)(1) only where
circumstances are presented which the VA Under Secretary for
Benefits or the Director of the VA Compensation and Pension
Service might consider unusual or exceptional. Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995).
The Board does not find that the veteran's disability picture
has been rendered unusual or exceptional in nature as to
warrant referral of his case to the Director or Under
Secretary for review for consideration of extraschedular
evaluation for the low back disability at issue for which an
increased evaluation is sought on appeal. The current
schedular criteria adequately compensate the veteran for the
current nature and extent of severity of his low back
disability at issue. Having reviewed the record with these
mandates in mind, the Board finds no basis for further action
on this question.
Reasonable Doubt
Although the veteran is entitled to the benefit of the doubt
where the evidence is in approximate balance, the benefit of
the doubt doctrine is inapplicable where, as here, the
preponderance of the evidence is against the claim. See
Gilbert, supra.
ORDER
Entitlement to a rating in excess of 40 percent for arthritis
of the low back with sacralization of L5-S1, DDD, and IDS is
denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.